DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-10106
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: James F. Duffy, Esquire, Department Counsel
For Applicant: Pro Se
______________
 Decision
______________
WESLEY, Roger C., Administrative Judge:
Statement of Case
On February 12, 2008, the Defense Office of Hearings and Appeals (DOHA),
pursuant to Department of Defense Directive 5220.6 (Directive), dated January 2, 1992,
and Department of Defense (DoD) Regulation 5200.2-R, issued a Statement of
Reasons (SOR) to Applicant, which detailed reasons why DOHA could not make the
preliminary affirmative determination of eligibility for granting a security clearance, and
recommended referral to an administrative judge to determine whether a security
clearance should be granted, continued, denied or revoked.
Applicant responded to the SOR on February 21, 2008 and requested a hearing.
The case was assigned to me on April 2, 2008, and was scheduled for hearing on April
30, 2008.  A hearing was held on April 30, 2008, for the purpose of considering whether
it would be clearly consistent with the national interest to grant, continue, or deny,
Applicant’s application for a security clearance.  At hearing, the Government's case
consisted of six exhibits; Applicant relied on one witness (himself) and three exhibits.
The transcript (R.T.) was received on May 14, 2008.  Based upon a review of the case
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file, pleadings, exhibits, and testimony, eligibility for access to classified information is
denied. 
Summary of Pleadings
Under Guideline G, Applicant is alleged (a) to have consumed alcohol to excess
and to the point of intoxication from at least 1977 to 2006 and (b) been involved in four
alcohol-related arrests between 1977 and April 2006.
For his answer to the SOR, Applicant admitted his 1998 driving under the
influence (DuI) arrest and disposition, his1984 citation for operating a vehicle while
intoxicated and award of non-judicial punishment (NJP) and his 1977 charge of illegal
possession of alcohol, for which he was fined.  But he denied any arrest in April 2006
for DuI; he claimed the arrest was for driving under the influence of alcohol., for which
he pleaded nolo contendere and was sentenced as alleged.  And he denied consuming
alcohol, at times to excess and to the point of intoxication, from at least 1977 to 2006.
Findings of Fact
Applicant is a 50-year-old production manager for a defense contractor who
seeks to retain his security clearance.  The allegations covered in the SOR and
admitted by Applicant are incorporated herein and adopted as relevant and material
findings.  Additional findings follow.
Applicant’s has two children and two step children from his first marriage.  All of
his children and step children are emancipated and living on their own (R.T., at 76).  He
divorced his first wife in 1996 and married his current wife in 1999 (see ex. 1). 
Applicant was introduced to alcohol in high school.  After graduating from high
school in 1975, he enlisted in the Air Force (AF).  He was granted a security clearance
in 1977 and has held one ever since (R.T., at 77-78).  
Applicant was discharged from the AF in January 1985 and went to work in a
civilian capacity for the AF the same month (see ex. 1).  He worked as an AF civilian for
over 12 years before moving on to the private sector.
Applicant continued to consume alcohol following his AF enlistment.  He had
consumed a can of beer on the base in 1977 and was still holding the beer can in the
driver’s seat when he was stopped by local college police (R.T., at 68-70). Police
charged him with illegal possession of alcohol and fined him (R.T., at 68).
In 1984, Applicant had participated in a major AF golf competition and had
consumed eight or nine beers at an ensuing party before heading home.  While headed
back to base housing, he inadvertently pulled onto the base facility (see ex. A), where
he was pulled over by base police (R.T., at 60-62, 92).  The base police asked him to
step out of his vehicle and arrested him for violating a command order not to drive on
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the base facility (R.T., at 62).  Once out of the vehicle, the base police asked him to
submit to a breath test.  When their Breathalyzer would not work, they escorted him, to
the base dispensary for administering a blood test (R.T., at 92).  While not completely
certain of his test results, he believes he registered over the limits to show alcohol
intoxication.
 Subsequently, Applicant accepted non-judicial punishment and was fined and
restricted to no driving on base for a year.  Applicant says he had inadvertently
disobeyed an order not to drive on the base (R.T., at 68).  Applicant insists he had
misconstrued the boundaries of the AF base when he approached the guard house on
the base (R.T., at 66-67).  He had assumed incorrectly that the base commenced at the
highway.  His claims while sincere were not convincing to the convening authority who
presided over his NJP appearance and do not alter judgment lapses associated with his
driving while under the influence of alcohol.   
Applicant realized after the incident that he should not have been driving home in
the evening of 1984.  After playing in the AF golf tournament 36 holes of golf and
drinking at a squadron celebration that followed (R.T., at 56-57), he was in no position
to drive safely.  But at the time he felt he could drive safely and did.  Applicant submitted
to a Breathalyzer at the dispensary; he is not sure of the test results but believes he was
probably over the limit  (R.T., at 92).
As a result of this 1984 alcohol-related incident, his command vacated an earlier
suspension of an order issued to Applicant not to drive on the base (see ex. 6).   Based
on the initiated Article 15 proceedings, Applicant was notified in May 1984 of his
ineligibility to reenlist in the AF (see ex. 5). The incident also prompted his vacation of
his acceptance into a previously approved OCS program (R.T., at 57-58).  As a result,
Applicant asked his command for early release from his AF enlistment to pursue his
education goals (R.T., at 71-72).  His request was granted, and Applicant received an
honorable discharge in January 1985 (R.T., at 73). 
Between 1987 and 1997, Applicant was enrolled in a college engineering
program at a respectable institution of higher learning.  He is credited with earning a
bachelors of science degree in electrical engineering from a reputable university after
17 years of study (see ex. 1).  His alcohol consumption was fairly moderate during this
period: maybe two beers one weekend a month during outside barbeques (R.T., at 95-
96).  
Following expiration of his probationary period, Applicant continued to consume
alcohol on a moderate basis.  He estimates that he typically consumed no more than
two to three beers with friends during weekend dinners or barbeques.  He practiced this
moderate level of drinking for over eight years between 1998 and 2006, and never
attended bars or drank to intoxication during this eight-year span.  What little free time
he had he spent with his daughters as their soccer coach, swimming instructor, and all
around supporter of their school activities.
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While attending an NCAA final four basketball game with his wife in 1998,
Applicant consumed eight or nine  beers.  When returning home after the game, he was
pulled over by police for a suspected improper lane change (see ex. 2; R.T., at 54-55,
90).  The officer who stopped him asked him if he had been drinking.  When Applicant
responded affirmatively, the officer asked him to submit to a field sobriety test and
Breathalyzer (ex. 2). Applicant failed both tests and was arrested for DuI and
incarcerated overnight.  He pled no contest in court and was sentenced to six months
probation, fined $450.00, ordered to work 80 hours of community service, enroll in a
driver education course, and surrender his driver’s license (see ex. 2; R.T., at 90-91).
He subsequently petitioned the court for an occupational driver’s license, which the
court approved (R.T., at 91).  
In April 2006, Applicant was involved in his fourth alcohol-related incident.
Applicant and his wife had been out dancing and consumed too much alcohol before
departing for home.  When stopped by the arresting officer, the officer asked Applicant
to step out of his vehicle (see ex. 3).  In disembarking from his vehicle, the officer noted
that Applicant was unsteady on his feet (ex. 3).  Upon observing his behavior and
finding  an open container in his vehicle, she asked him to submit to a Breathalyzer test
(R.T., at 80-81).  Applicant declined the officer’s request and was arrested.  
At hearing, Applicant questioned the officer’s character (see ex. C) and her
characterization of his  clumsy reactions on his feet after exiting his vehicle (R.T., at 41).
He attributes his apparent clumsy movements to banging his knee on the hitch of his
truck.  This is a plausible explanation of his apparent clumsy footwork.  However,
neither this explanation nor his claimed request to talk to a lawyer adequately explain
the likely effects of his prior alcohol consumption during and after his golf tournament
(i.e., four to six beers while playing 36 holes of golf and three beers and a margarita at
the reception afterwards) or his failure to submit to a requested field sobriety test at the
scene or a Breathalyzer back at the station (compare ex. 3 with R.T. ,at 42-53, 88-89).
 At his June 2006 court appearance, Applicant pled no contest and was
sentenced to 18 months probation, fined $700.00, ordered to enroll in both a victim
impact panel and a 16-week alcohol intervention course, (which included weekly
meetings with Alcoholics Anonymous (AA) and attendance reports) and directed to
perform 24 hours of community service (see ex. 2; R.T., at 80).  Because his driver’s
license was automatically suspended for two years as the result of his DuI conviction,
he sought and obtained court approval of an occupational driver’s license for the
duration of his two-year driver’s license suspension period (ex. 2).  One of the
conditions the court set for Applicant’s occupational driver’s license was the installation
of an ignition interlocking breathalyzer device in his vehicle that Applicant must use
every time he uses his vehicle (ex. 2).  
Since his June 2006 incident, Applicant does not party or attend bars and
assures he has not consumed alcohol of any kind (R.T., at 97-98).  Instead of alcohol,
he assures that he and his wife only consume O’Doul’s non-alcoholic beverages (R.T.,
at 99).  He has never had the impression he was dependent on alcohol.  Nonetheless,
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he has continued to attend open AA meetings, which are a condition of his court-
conditioned probation (R.T., at 96-97).  He provides signed monthly attendance reports
to his probation officer (R.T., at 96-97), and expects to continue his AA meetings for the
duration of his probation (R.T., at 97).  He does find the friendships and support he
receives from his AA participation to be very helpful; even though he does not admit to
being an alcoholic  (R.T., at 97).  
Because a core tent of AA is acknowledging one’s alcoholic status, it is difficult to
gauge Applicant’s commitments to AA. He acknowledge’s AA’s alcoholic admission
tenet, but avoids closed meetings where testimonials and acknowledged alcoholism are
expected. Furnished attendance reports, chips commemorating his sustained
abstinence, and endorsements from a sponsor and friends familiar with his AA
attendance would have provided helpful corroboration. Professional evaluations of his
alcohol status could have been useful, too, in determining his vulnerabilities (if any) to
alcohol.  Applicant indicated, though, that he has never sought a professional evaluation
from a credentialed physician or therapist for any alcohol problems (R.T., at 84).  
Without any professional evaluation of Applicant or corroboration of his AA
attendance and benefits derived from his participation, the most that can be inferred
from Applicant’s accounts is that he has attended AA meetings since being placed on
probation in June 2006.  It is less than clear whether Applicant (once his probation is
officially concluded and his driving privileges are restored) will continue with his AA
meetings, maintain his self-imposed abstinence, and avert any recurrent alcohol-related
arrests, lapses or slips.  Based on his testimony, his probation has been extended
several months (from December 2007 to May 2008 (compare ex. 2 with R.T., at 81),
and he still has a restricted driver’s license (R.T., at 81).  Reasons for his probation
extension are not specifically cited, but seem likely to be associated with his license
suspension.
Policies
The revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information (effective September 2006) list Guidelines to be considered by
judges in the decision making process covering DOHA cases.  These Guidelines require
the judge to consider all of the conditions that could raise a security concern and may
be disqualifying (Disqualifying Conditions), if any, and all of the Mitigating Conditions, if
any, before deciding whether or not a security clearance should be granted, continued
or denied.  The Guidelines do not require the judge to assess these factors exclusively
in arriving at a decision.  In addition to the relevant Adjudicative Guidelines, judges must
take into account the pertinent considerations for assessing extenuation and mitigation
set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive, which are
intended to assist the judges in reaching a fair and impartial common sense decision.
Viewing the issues raised and evidence as a whole, the following adjudication
policy factors are pertinent herein:
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Alcohol Consumption
The Concern. “Excessive alcohol consumption often leads to
the exercise of questionable judgment, or the failure to
control impulses, and can raise questions about an
individual’s reliability and trustworthiness.” See AG ¶ 21.
Burden of Proof
By virtue of the precepts framed by the Directive, a decision to grant or continue
an applicant's security clearance may be made only upon a threshold finding that to do
so is clearly consistent with the national interest.  Because the Directive requires
Administrative Judges to make a common sense appraisal of the evidence accumulated
in the record, the ultimate determination of an applicant's eligibility for a security
clearance depends, in large part, on the relevance and materiality of that evidence.  As
with all adversary proceedings, the Judge may draw only those inferences which have a
reasonable and logical basis from the evidence of record.  Conversely, the Judge
cannot draw factual inferences that are grounded on speculation or conjecture.
The Government's initial burden is twofold: (1) It must prove any controverted
fact[s] alleged in the Statement of Reasons and (2) it must demonstrate that the facts
proven have a material bearing  to the applicant's eligibility to obtain or maintain a
security clearance.  The required showing of material bearing, however, does not
require the Government to affirmatively demonstrate that the applicant has actually
mishandled or abused classified information before it can deny or revoke a security
clearance. Rather, consideration must take account of cognizable risks that an applicant
may deliberately or inadvertently fail to safeguard classified information.
Once the Government meets its initial burden of proof of establishing admitted or
controverted facts, the burden of persuasion shifts to the applicant for the purpose of
establishing his or her security worthiness through evidence of refutation, extenuation or
mitigation of the Government's case.
Analysis
Applicant is an accomplished production manager for a defense contractor with a
history of recurrent alcohol-related arrests (four in all over a 30-year period) and
sometimes abusive alcohol consumption over a 30-year period. His alcohol history
includes four alcohol-related incidents between 1977 and 2006.  Applicant’s exhibited
alcohol abuse raises security concerns covered by Guideline G of the Adjudicative
Guidelines. 
Applicant’s four alcohol-related arrests covered in the SOR raise major concerns
over his risk of recurrent alcohol abuse.  On the strength of the evidence presented,
several disqualifying conditions (DC) of the Adjudication Guidelines for alcohol
consumption (AG ¶ 21) may be applied: 22(a), “alcohol-related incidents away from
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work, such as driving while under the influence, fighting, child or spouse abuse,
disturbing the peace or other incidents of concern, regardless of whether the individual
is diagnosed as an alcohol abuser or alcohol dependent,” 22©), “habitual or binge
consumption of alcohol to the point of impaired judgment, regardless of whether the
individual is diagnosed as an alcohol abuser or alcohol dependent,” and 22(d),
“diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist,
or psychiatrist) of alcohol abuse or alcohol dependence.” 
Despite the recurrent pattern of his alcohol-related arrests (four over a 30-year
period), Applicant does not believe he is alcoholic and attends AA open meetings,
where admitted alcoholism and personal testimonials are not expected.  Further, he has
never sought an evaluation from a credentialed physician or licensed substance abuse
counselor and provides no corroborative support of his AA attendance.  Applicant’s
failure to provide any corroborative support of his AA and abstinence commitments are
important considerations in determining what weight to assign to Applicant’s
rehabilitation claims.  See ISCR Case 02-03186 (App. Bd. Feb. 16, 2006); ISCR Case
01-20579, at 5 (App. Bd. Apr. 14, 2004). 
Still troubling and of ongoing security concern is Applicant’s history of recurrent
relapses following periods of light to moderate alcohol consumption, and his lack of any
extended period of sustained abstinence.  While Applicant provides assurances of his
sincere commitment this time to maintain his current track of sobriety with the help of
AA, his sustained abstinence efforts are still relatively new (about two years), and
several months short of his estimated completion of his probation.  Moreover,
Applicant’s driving privileges are still partially suspended, and will remain so for at least
a couple of additional months. This is not to suggest his renewed commitments to
sobriety do not reflect positive changes in behavior supportive of sobriety.
With his long history of alcohol-related incidents, and drinking abuses associated
with these incidents, relapses following probation and, and still relatively short time in
sustained abstinence following his commitment to abstinence with AA support in July
2006, it is still too soon to make safe predictions that he is at no foreseeable risk to a
recurrent alcohol-related incident.  Faced with similar recurrent alcohol-related arrests
over a considerable period of time, our Appeal Board has expressed reluctance to make
safe predictive judgments about an applicant’s ability to avoid abusive incidents in the
future without strong probative evidence of sustained recovery, aided by positive
professional reinforcements.  See ISCR Case No. 06-17541 (App. Bd. Jan. 14, 2008);
ISCR Case No. 04-10799 (App. Bd. Nov. 9, 2007).
Taking into account both Applicant’s history of alcohol abuse, his strong work
record, the applicable guidelines and a whole person assessment of his most recent
sobriety efforts (which have been roundly praised by his treatment counselors),
conclusions warrant that his overall efforts, while encouraging, do not reflect sufficient
evidence of sustained commitment to AA and its tenets of sobriety to convince he is no
longer at risk to recurrence.  In the past, he has enjoyed considerable periods of
sobriety only to return to episodic drinking that involved alcohol-related incidents away
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from work.  Because of this recurrent abuse problem, his earlier incidents cannot be
considered isolated and unrelated to a pattern of abuse, despite their comparative age
when considered separately.
Considering the record as a whole, Applicant fails to make a convincing showing
that he has both the maturity and resource support at his disposal to avert any recurrent
problems with judgment lapses related to alcohol.  Without a more seasoned record of
sobriety to rely on, Applicant’s mitigation efforts are simply not enough at this time to
warrant safe predictions that he is no longer at risk to judgment impairment associated
with such conduct.  Unfavorable conclusions warrant with respect to the allegations
covered by the alcohol guideline of the SOR. 
 In reaching my decision, I have considered the evidence as a whole, including
each of the E 2.2 factors enumerated in the Adjudicative Guidelines of the Directive.
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, and the factors listed above, I make the
following formal findings:
GUIDELINE G (ALCOHOL CONSIDERATIONS):       AGAINST APPLICANT
Sub-paras. 1a through 1.e AGAINST APPLICANT
Conclusion
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue Applicant’s security
clearance.  Clearance is denied.
                                  
Roger C. Wesley
Administrative Judge